What to Do About Gitmo

Nasser HussainInterview by Caroline J. Hanna

On his second full day in office, President Barack Obama signed an executive order committing to close the U.S. military detention facility at Guantánamo Bay, Cuba, and to review the legal status of “enemy combatants” detained there. Nasser Hussain, associate professor of law, jurisprudence and social thought, studies the writ of habeas corpus (the judicial mandate requiring that prisoners be brought before the court to determine whether the government has the right to continue detaining them) and the use of emergency powers. He recently spoke to Amherst magazine.

Q What sparked your interest in Guantánamo?

A One of the chapters of my book The Jurisprudence of Emergency: Colonialism and the Rule of Law is on the history of habeas corpus in the British Empire and the debate over whether habeas corpus extends outside the immediate vicinity of Britain, to, for example, the possessions in India.

As I was finishing the book—it was in review already—9/11 happened. In 2003, lawyers representing Guantánamo Bay detainees got in touch with me. The Bush administration’s argument was that, because Guantánamo de jure belongs to Cuba, no rights extend to enemy combatants detained there. These lawyers wanted to find cases where, for example, a judge would say, “No, what really matters is actual control, not some formal title.”

Q Are there such cases?

A Sure enough, there were cases I had found where English judges had said, “The king can’t just go to India and have complete control and none of the constitutional restraints.” It was one of the more interesting twists of my intellectual life: what was probably the most arcane, academic chapter of my book—the technical question of the extraterritorial application of habeas corpus—had suddenly become a daily debate on the news. It was surreal.

A The brief pointed out that, in fact, there has been a tradition of using habeas corpus even in territories where the question of sovereignty was somewhat muddled but where there was an effective ruling presence. De facto sovereignty matters. The Supreme Court basically upheld that.

Q Do you think the Guantánamo detainees have been legally mistreated?

A I think the original position of the Bush administration was untenable: that these are people outside of both international and domestic law. The Supreme Court pushed back in the right ways. In Hamdi v. Rumsfeld, they said you have to give detainees some sort of a hearing; in Boumediene v. Bush, they said detainees who are not citizens still have a right to habeas corpus.

Q How different is Obama’s position from Bush’s?

A It seems the administration is going to continue with military commissions but with more protections for the accused, such as excluding hearsay or coerced evidence. How much of a change will this system really be? It’s just too early to say.

Q What legal issues might emerge now?

A I think the most difficult thing for President Obama will be the question of so-called “hard cases”—how you detain people you do not want to release for security purposes but against whom you do not have enough evidence to try. In the U.K., they’ve tried to come up with a midway scheme called control orders, which involve electronic surveillance, curfews and other elements. You’re not putting people in jail, but you’re keeping them under surveillance because of a reasonable suspicion.

Q In June, Ahmed Ghailani was the first detainee released from Guantánamo to be tried domestically. Is that a signal of change?

A The Ghailani case is a pretty straightforward one. By all accounts, there is ample evidence of his involvement in the embassy bombings of the 1990s. The real test will be with the more murky cases. But this case may be a good reminder that we have, in the past, successfully and fairly tried terrorists in civilian courts.